Ninth Circuit Reinstates Sexual Harassment Case Against Safeway

In a recent decision, Simmons v. Safeway, Inc. d/b/a Haggen Food and Pharmacy et al., 19-35715 (9th Circuit Aug. 5, 2020) (deemed “not for publication”),[1]General information about this practice here the U.S. Court of Appeals for the Ninth Circuit reversed a summary judgment granted to defendant in plaintiff’s sexual harassment case asserted under Title VII of the Civil Rights Act of 1964.

Specifically, the court held that the district court erred in holding that no reasonable jury could conclude that the alleged improper conduct was sufficiently “severe or pervasive” and that Haggen failed to take “prompt and effective remedial action.”

After summarizing the law, the court applied it to the facts:

Haggen does not dispute that Simmons was subjected to unwelcome conduct, and Simmons demonstrates genuine issues of material fact as to the remaining elements. First, whether Shaffer’s conduct was based on sex is a question of fact because Shaffer treated men and women differently. He subjected Simmons to treatment to which he did not subject men: standing within one to two feet of her, following her around, and holding her waist. See EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840, 844 (9th Cir. 2005) (“‘[D]irect comparative evidence about how the alleged harasser treated members of both sexes’ is always an available evidentiary route.” (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81 (1998))). No male Haggen employee has alleged the same. Furthermore, the evidence here suggests that Shaffer’s staring affected women differently than it affected men: it made Simmons and at least one other female coworker very uncomfortable, whereas the male store manager said he appreciated the staring.[]

Second, Shaffer’s conduct was more than “[s]imple teasing” or “offhand comments.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted). Shaffer stared and stood uncomfortably close during each of the seventeen shifts he worked with Simmons over a two-month period. Additionally, Simmons testified that Shaffer began following her into small, confined areas, and held her waist for thirty seconds. Because the “[t]he required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct,” Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 687 (9th Cir. 2017) (citation omitted), a reasonable jury could find that the cumulative effect of Shaffer’s repeated conduct, plus the one time he held her waist, was so severe or pervasive as to alter the conditions of employment.

Third, Haggen only counseled Shaffer about his staring, and reasonable minds could disagree over whether Haggen “expresse[d] strong disapproval” even of this one type of conduct. Intlekofer v. Turnage, 973 F.2d 773, 780 (9th Cir. 1992). Therefore, there is a genuine issue of material fact regarding whether Haggen’s response was “proportionate to the seriousness of the offense,” constituting “prompt and effective remedial action.” Reynaga, 847 F.3d at 689 (alteration and citations omitted). Thus, we reverse and remand on Simmons’ hostile work environment claim.

Based on this, the court reversed and remanded on plaintiff’s hostile work environment claim.

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